Last Updated: August 2024 

Welcome to Wonder. These Merchant Terms of Service (including the Merchant Order Form into which these Merchant Terms of Service are incorporated (the “Order Form”), as well as any and all Supplemental Terms) will constitute a binding agreement between Wonder Group, Inc. (together with its affiliates and subsidiaries, “Wonder”, “we”, “us” and “our”) and you regarding our partnership, effective on the date of your acceptance (our “Agreement”).    

IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED BELOW IN SECTION 17.   

The terms “Merchant”, “you” and “your” refer to the entity entering into this Agreement with us and all of its participating locations, and the individual who accepts this Agreement on Merchant’s behalf represents that they have the authority to bind Merchant and all of its participating locations.    

1.    ONBOARDING. Promptly following your acceptance of this Agreement, you will provide us with complete and accurate copies of all information, forms and/or documents and complete any other steps or actions required to become an active, participating merchant who makes Menu Items available for delivery to, and, as applicable, pickup by, Customers on the Wonder Platform (a “Merchant Partner”) (collectively, “Merchant Onboarding”). Merchant Onboarding requirements will be outlined in the materials provided to you by Wonder during the onboarding process. We will not have any obligations under this Agreement until we have received your fully completed Merchant Onboarding.    

2.    WONDER’S SERVICES AND OBLIGATIONS.   

2.1.     Menu Items and Services. Wonder provides the “Wonder Platform”, consisting of  proprietary technology (the “Wonder App”) and related online services (the “Wonder Services”), which together facilitate the marketing, sale and fulfillment of delivery or pickup orders for food and beverage items and other products from Merchant Partners (collectively, “Menu Items” and such orders, collectively, “Orders”) to customers (“Customers”) in those geographic locations served by Wonder, as such locations may change from time to time (the “Service Area”). Customers may place Orders for (i) delivery, which Orders (“Delivery Orders”) may be delivered by individuals hired or contracted by Wonder (“Wonder Delivery Persons”) or by the applicable Merchant Partner, independently of Wonder only if expressly permitted by Wonder in Wonder’s sole discretion (“Merchant Delivery Persons” and together with Wonder Delivery Persons, “Delivery Persons”), and/or (ii) pickup by Customers (“Pickup Orders”). Wonder Services may include, as applicable, payment processing, marketing and promotional services, and operational and other support services. Wonder will be responsible for: (a) providing applicable Wonder Services to Merchant for use by Merchant at those restaurant locations owned and operated by Merchant (or its affiliates or franchisees) that participate in the Wonder Platform (the “Merchant Locations”) in accordance with this Agreement; (b) displaying Merchant’s trademarks, service marks, trade names, logos, slogans, identifying symbols and indicia (collectively, “Brand Features”), the Merchant’s Location(s), and a mutually-agreed selection of all Menu Items to be offered for Orders at Merchant Locations (“Merchant’s Menu Items”) on the Wonder Platform; (c) accepting Orders from Customers in the Service Area and forwarding Orders to the relevant Merchant Location; (d) arranging for a Wonder Delivery Person to pick up each applicable Delivery Order from the Merchant Location for delivery to the Customer; (e) responding to Customer complaints; and (f) payment to Merchant in accordance with the terms hereof. Wonder may activate or suspend Merchant from the Wonder Platform in its sole discretion at any time.   

2.2.     Merchant Portal. In connection with the Wonder Services, Wonder may, in Wonder’s sole discretion, make available to Merchant a website, mobile application or other technology interface (the “Merchant Portal”) through which Merchant may (and shall, if applicable) review and confirm its transactions, fees and charges, and account on the Wonder Platform, communicate with Wonder, and access such other provided features and functionalities (collectively, the “Merchant Services”). In such event, Wonder  grants to Merchant a limited, non-exclusive, non-transferable, non-sublicensable right and license, during the Term, to access and use the Merchant Portal (if and as made available to Merchant by Wonder) to the extent necessary to perform the Merchant Services.   

3.    MERCHANT’S OBLIGATIONS.   

3.1.     Menu Items. Merchant shall: (i) provide Wonder (either directly or through a third party platform as directed by Wonder) with Merchant’s full menu and related information, including a list of all Menu Items with prices, descriptions, customization and modification options and other details reasonably required for a Customer to order and (ii) prepare and provide Menu Items of the same type and quality that Merchant provides at its in-store locations. Merchant acknowledges and agrees that Wonder may (a) add, revise or remove names or descriptions of the Menu Items, (b) remove Menu Items, (c) insert its own photographs or graphics, use stock photographs, or pull photographs or graphics from Merchant’s website, social media channels or other sources for the Menu Items in accordance with Section 6.4 below, (d) create its own menu for Merchant if Merchant does not send its Menu Items to Wonder, or (e) make any other changes to the description or presentation of Menu Items at Wonder’s own discretion.  Merchant further acknowledges and agrees that: (x) none of Merchant’s Menu Items shall include alcoholic beverages or other age-restricted products unless pre-approved by Wonder in writing; and (y) Merchant’s Menu Items on the Wonder Platform are subject to Wonder’s approval.    

3.2.     Order Fulfillment. Merchant shall: (i) habe available for receiving orders during Merchant’s standard hours of operation; (ii) accept and confirm all Orders placed by Wonder for Merchant’s Menu Items in a timely fashion, except during periods of suspension described in Section 3.4; (iii) process Orders in an efficient manner without errors or defects in accordance with industry standards; (iv) prepare Orders within the agreed upon preparation time period, (v) package Orders in a manner sufficient to keep the Menu Items intact during delivery or transit, and provide the same utensils, napkins, bags, and other materials that a restaurant would typically provide in a standard delivery or pickup order; (vi) prepare each Pickup Order for pickup by the Customer at the designated time; (vii) independently arrange each applicable Delivery Order for pickup by a Merchant Delivery Person (if applicable) at the designated time; (vii) prepare each applicable Delivery Order for pickup by a Wonder Delivery Person at the designated time in accordance with mutually-agreed pickup protocols (as may be set forth in Merchant Onboarding or otherwise agreed to by the parties); and (viii) ensure each Delivery Order that is delivered by a Delivery Person shall be delivered to the Customer’s specified address in a safe and efficient manner consistent with industry standards.   

3.3.     Updates to Merchant Information.   

3.3.1.     Merchant shall regularly monitor Merchant’s Menu Items and Merchant Location information on the Wonder Platform and shall promptly make updates via the Merchant Portal or such other tools as Wonder may establish to reflect the most up-to-date descriptions, availability, pricing, and contact and other information, or immediately notify Wonder (via email or such other communication channels as Wonder may establish) of any errors or changes.   

3.3.2.     Without limiting the foregoing, Merchant shall promptly notify Wonder (via email, updating a portal or such other communication channels or methods as Wonder may establish) of any changes to: (i) warnings, labels, or other information required to be displayed in connection with Merchant’s Menu Items; or (ii) Merchant’s standard hours of operation (including for holidays).   

3.4.     Suspension. Merchant may temporarily stop accepting new Orders via the Wonder Services at a given Merchant Location if the Merchant Location is unable to fulfill Order requests in accordance with Section 3.2 hereto (provided that Merchant will accept and fulfill all Orders already placed at the time of suspension).    

3.5.     Pricing. Merchant is responsible for determining and setting the retail price for each of Merchant’s Menu Items on the Wonder Platform (the “List Price”), provided that such prices are the same as or lower than the price that Merchant charges for similar Menu Items through comparable third-party food delivery and pickup platforms.  Wonder reserves the right to modify any List Price set by Merchant in its sole discretion.   

3.6.     Health and Safety Standards.   

3.6.1.     Merchant must notify Wonder via email if Merchant receives a health grade lower than Satisfactory, or a citation or complaint from a food/health regulator.   

3.6.2.     Merchant shall operate and maintain all Merchant Locations in a safe way consistent with best practices and industry standards (including food safety standards, public health standards and COVID-19 regulations). Merchant agrees that, for purposes of delivery of Merchant’s Menu Items, Delivery Persons shall operate under cover of Merchant’s retail and health and safety licenses, registrations, authorizations and privileges and control.    

3.7.     Order Equipment.  Merchant will install any equipment reasonably required by Wonder for Merchant to receive and process Orders (including a tablet, printer, or other electronic equipment) (collectively, “Order Equipment”). If applicable, any Order Equipment provided by Wonder will remain Wonder’s sole property and may be used solely for purposes related to fulfilling Merchant’s responsibilities under this Agreement. Merchant will inspect all hardware and notify Wonder if any Order Equipment is missing or damaged as soon as practicable. Merchant will be responsible for maintaining any Order Equipment provided by Wonder. If Order Equipment is damaged through ordinary wear, tear and use, Wonder will recover the damaged Order Equipment and replace it.  Merchant shall bear all risk of loss or damage to the Order Equipment, excluding ordinary wear and tear.  Wonder may connect to or otherwise access the Order Equipment via remote access during the Term as necessary or appropriate for initial installation, maintenance, and troubleshooting of the Order Equipment or for any other business purposes.  Wonder may remotely change software, systems, applications, features or programming on the Order Equipment without notice.  These changes may modify the Order Equipment in your possession and may affect or erase data you have stored on the Order Equipment, the way you have programmed the Order Equipment, or the way you use the Order Equipment. You may not be able to use the Order Equipment during the installation of these changes.  Wonder reserves the right, in its sole discretion, to charge a security deposit, technology fee or any other amounts for the Order Equipment upon notice to Merchant.  At Wonder’s request at any time, including in the event Merchant ceases operation pursuant to this Agreement, Merchant shall promptly return the Order Equipment to Wonder in the same condition as when it was delivered to Merchant (excluding ordinary wear and tear).    Merchant will cooperate with any third party platform, service, equipment or vendor as requested by Wonder in connection with the Order Equipment, provision of the Services or this Agreement. 

4.      FEES, PAYMENT AND TAXES.   

4.1.     Fees and Payment. Subject to the terms and conditions herein, Wonder shall be entitled to the Wonder Fees and Merchant shall be entitled to the Merchant Revenue (as defined below). On a weekly basis, Wonder will remit to Merchant the total List Price Revenue collected for all Orders fulfilled by Merchant via the Wonder Platform (excluding, for the avoidance of doubt, any sales, use and similar taxes collected by Wonder in accordance with Section 4.4) in the prior week, less (each, as applicable): (i) the retained Wonder Fee; (ii) any chargebacks and refunds given to Customers; (iii) any discounts given to Customers; (iv) the Customer Fees; and (v) such other fees as may be deducted pursuant to this Agreement (such final remitted amount, “Merchant Revenue”). As used herein, (a) "Wonder Fees” means the commission fees collected by Wonder in exchange for promoting and featuring Merchant and Merchant Locations on the Wonder Platform, which is charged as a percentage of List Price Revenue transacted on the Wonder Platform at the applicable rate set forth in the Order Form, and (b) “List Price Revenue” means all revenues actually received by or credited to Wonder for sales of Merchant’s Menu Items at the List Price (as defined below). For clarity, List Price Revenue does not include any Customer Fees received by or credited to Wonder in connection with such sales.    

Merchant agrees Wonder may charge Customers fees, such as a delivery fee, service fee, surcharge fee, or small order fees, in Wonder’s sole discretion (“Customer Fees”). As between the parties, Wonder shall retain all Customer Fees. To the extent that a third-party provider provides services to Merchant via the Wonder Platform and charges fees to Wonder, Wonder may pass through such third party’s fees to Merchant. Wonder reserves the right to suspend Merchant from the Wonder Platform if Merchant’s account is in arrears. If Merchant is paid for a Menu Item ordered by a Customer through the Wonder App, Merchant is responsible for the Wonder Fee applicable thereto even if a Delivery Person is unable to complete the delivery of such Menu Item to the Customer or the Customer does not pick up the Merchant Item, as applicable. Except as may be expressly agreed in this Agreement, each party will be responsible for its expenses and costs during its performance under this Agreement.   

Customers must pay for all Orders, inclusive of any Customer Fees, via the Wonder App and no portion of any Order may be paid for in cash.  Wonder may collect tips from Customers and, if Wonder does so collect tips, Wonder will distribute such tips in accordance with applicable law.   

Merchant is solely responsible for providing Wonder with, and maintaining, accurate bank account information.   

4.2.     Payment Processing Services. Payment processing services for Merchant Partners on the Wonder Platform (“Payment Processing Services”) will be provided by a third-party payment processing partner (the “Payment Processor(s)”) and are subject to separate privacy and other policies, terms and conditions of use and/or sale and rules issued by such Payment Processor(s) (collectively, “Payment Processor Agreements”). By entering into this Agreement, Merchant agrees to be bound by all applicable Payment Processor Agreements, as the same may be modified by the applicable Payment Processor(s) from time to time. For any questions or complaints relating to our Payment Processor(s), including how our Payment Processor(s) process your information, please review their Payment Processor Agreements. As a condition of Wonder enabling Payment Processing Services through the Payment Processor(s), Merchant agrees to provide Wonder accurate and complete information about Merchant’s representative and its business, and Merchant authorizes Wonder to share it and transaction information related to Merchant’s use of the Payment Processing Services provided by the Payment Processor(s). Merchant understands and agrees that the Payment Processor(s) are third parties, not affiliated with Wonder and, accordingly, (i) Wonder makes no representations or warranties with respect to the Payment Processing Services, and (ii) none of Wonder, its affiliates, or its or their respective directors, officers, employees, agents and assigns or other representatives, assume or will have any responsibility or liability to Merchant or any other person for such Payment Processing Services or the acts or omissions of any Payment Processor(s).    

4.3.     Disputes. Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on Orders and invoices via the Merchant Portal, if and as applicable, and to communicate to Wonder any disagreement, non-conformity or any issue with any transaction, fee, charge or Order within 30 days of the applicable transaction, fee or Order. Merchant shall be deemed to have waived any claim or objection regarding each transaction, fee, charge and Order if Merchant does not communicate a written claim or objection to Wonder regarding such transaction, fee, charge or Order in accordance with this Section 4.3.   

4.4.     Taxes. As between the parties, Wonder shall be responsible for collecting from Customers all sales, use and similar taxes on amounts paid by such Customers for Orders fulfilled by Merchant via the Wonder Platform, and for remitting such taxes to the appropriate authorities, as required under applicable law.   

4.5.     Title. Merchant agrees that Merchant holds title to the goods or products that Merchant provides through the Wonder Platform until the goods are picked up from Merchant, and that title passes from the Merchant to the Customer upon pickup at the Merchant’s location. Merchant agrees that neither Wonder nor the Wonder Delivery Person holds title to or acquires any ownership interest in any goods or products that Merchant prepares or provides through the Wonder Platform.   

5.    CUSTOMER SUPPORT; REFUNDS, REORDERS AND CANCELLATIONS.   

5.1.     Customer Support. Wonder shall be responsible for fielding Customer support issues, such as those relating to: (i) the ordering of Merchant’s Menu Items via the Wonder Platform; (ii) a Customer’s Wonder account; (iii) the timeliness or quality of a Delivery Person’s delivery service; and (iv) damage to Merchant’s Menu Items to the extent caused by a Delivery Person.  Merchant shall promptly report the same to Wonder. The parties will cooperate to implement and maintain at all times Customer service escalation procedures to ensure each party receives the Customer complaints for which it is responsible. Merchant agrees to respond to and escalate Customer complaints in accordance with those scripts provided to it by Wonder and such other guidelines as Wonder may provide from time to time.   

5.2.     Refunds, Reorders and Cancellations. The parties acknowledge and agree that: (i) charges paid by Customers for completed Pickup Orders and for completed and delivered Delivery Orders are final and non-refundable; (ii) Wonder has no obligation to provide refunds, credits or re-orders, including for orders cancelled by Customers prior to pick up or delivery, but may grant them in our discretion; and (iii) credits are nontransferable, not exchangeable for cash, and subject to expiration. In the event that Wonder, in its sole discretion, issues a refund, credit or re-order on a Customer Order, (a)  Merchant will bear the full cost of that refund, credit or re-order, as applicable, unless the refund, credit or re-order is due to the fault of Wonder or a Wonder Delivery Person or Wonder decides in its sole discretion to cover such cost, and (b) in the case of a re-order, Merchant will prepare the food to the same specifications as the original Order and Wonder will deliver such re-order, in each case subject to the applicable terms and conditions of this Agreement. Wonder will provide Merchant with reasonable information regarding any refunds given to its Customers, including the date of the transaction, the Menu Item ordered, the reason for the refund and any other information Wonder is permitted to provide under applicable privacy laws and terms with Customers. If Merchant elects to refund a Customer for any reason, such election shall not obligate Wonder to provide a corresponding reimbursement to Merchant.   

6.  INTELLECTUAL PROPERTY; MARKETING AND PROMOTIONS.   

6.1.     Merchant’s Brand Features. Subject to the terms and conditions herein, Merchant hereby grants to Wonder and its affiliates a limited, non-exclusive, fully-paid up, royalty-free and non-transferable (except to Wonder-designated third parties and affiliates) right and license during the Term to use Merchant’s Brand Features in connection with: (i) the provision of the Wonder Services and Wonder Platform to Merchant, including listing Merchant as a merchant on the Wonder Platform, displaying Merchant’s Menu Items on the Wonder Platform, and referencing Merchant as a Merchant Partner; and (ii) the advertising, marketing and promotion of Wonder, Merchant, Merchant’s Menu Items and the availability of Merchant’s Menu Items via the Wonder Platform, including in any and all advertising, marketing, and promotional materials in any and all media (whether now known or hereafter developed). Merchant acknowledges that Wonder or its affiliates may remove Merchant’s Brand Features from the Wonder Platform if Wonder or its affiliates receive notice or otherwise reasonably believe that such Brand Features may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights of any third party.   

6.2.     Wonder’s Brand Features. Subject to the terms and conditions herein, Wonder hereby grants to Merchant a limited, non-exclusive, fully-paid up, royalty-free and non-transferable right and license during the Term to use Wonder’s Brand Features as provided to Merchant in connection with the advertising, marketing and promotion of Wonder and the availability of Merchant’s Menu Items via the Wonder Platform, subject to Wonder’s prior express written consent in each instance. For clarity, all uses of Wonder’s Brand Features will be in the form and format specified or approved by Wonder and shall conform to Wonder’s brand guidelines as provided to Merchant from time to time.   

6.3.     Retained Rights. As between the parties, each party agrees that the other party shall retain all intellectual property rights, including rights in patents, copyrights, trademarks, and trade secrets (collectively, “Intellectual Property Rights”) in and to such other party’s Brand Features and, in the case of Merchant, the Brand Features of Merchant’s affiliates. Except as expressly set forth in this Agreement, no licenses are granted by either party to the other with respect to such party’s Brand Features and all rights not expressly licensed hereunder are expressly reserved. All goodwill related to the use of a party’s Brand Features by the other party will inure to the benefit of the owner of such Brand Features.   

6.4.     Marketing.    

Wonder and its affiliates may showcase Merchant and the availability of Merchant’s Menu Items via the Wonder Platform through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). Wonder (or a party designated by Wonder acting on Wonder’s behalf) may on reasonable prior notice, and in its sole discretion, schedule a photoshoot with Merchant (a “Photoshoot”) to take video and/or still images for marketing and other efforts (collectively, “Wonder Photographs”) at Merchant’s location or any other location and time as reasonably identified by Wonder.  The Photoshoot shall be conducted in accordance with Wonder’s photoshoot guidelines. Merchant agrees that, as between the parties, Wonder Photographs (including all Intellectual Property Rights therein) and any other content, media or materials developed by or on behalf of Wonder or its affiliates in connection with the display and advertising, marketing and promotion of Merchant and Merchant’s Menu Items hereunder are and will remain the sole and exclusive property of Wonder.  Merchant shall not use the Wonder Photographs unless agreed to in writing by Wonder.   

Additionally, Merchant may provide videos, still images, menus, written descriptions or other content, media or materials (collectively, “Merchant Materials”) to Wonder or its affiliates for use in connection with the display of Merchant’s Menu Items on the Wonder Platform and in the advertising, marketing and promotion of Wonder, Merchant and the availability of Merchant’s Menu Items via the Wonder Platform. “Merchant Materials” shall also include any and all images, videos, written descriptions or other content, media or materials on Merchant’s social media channels, websites or other sources, including but not limited to Facebook, Instagram, Yelp, Twitter, TikTok, or other media platform whether now known or hereafter developed. Merchant represents and warrants that the Merchant Materials do not contain the confidential or proprietary information of any third party or violate any third party rights. Merchant hereby grants Wonder and its affiliates a non-exclusive, perpetual, fully paid-up and royalty-free right and license to use and display such Merchant Materials, including those Merchant Materials incorporating Merchant’s Brand Features, in connection with Merchant’s Menu Items and other promotional activities relating to Wonder, the Wonder Platform or any other Wonder business, including in any and all advertising, marketing, and promotional materials, in any and all media (whether now known or hereafter developed). No prior consent or notification is required for Wonder to use such Merchant Materials. To the extent that the Merchant Materials contain any third-party materials, Merchant is solely responsible for and will secure any and all rights, licenses, consents and permissions reasonably required for Wonder to be able to use the Merchant Materials in accordance with this Section 6.4.   

6.5.     Promotions.   

6.5.1.     Merchant Promotions. Subject to Wonder’s promotional guidelines made available from time to time, Merchant may offer discounts, specials or other promotions on Menu Items (“Merchant Promotions”); provided, that if a Merchant Promotion will reduce the Wonder Fees that Wonder receives with respect to such Menu Items, Merchant shall give Wonder at least 7 days’ prior written notice by email of its intent to offer the Merchant Promotion. Merchant may not market or otherwise advertise a Merchant Promotion outside the Wonder Platform without Wonder’s prior written consent.    

6.5.2.     Wonder Promotions. Wonder may, in its sole discretion, offer discounts, specials, and other promotions that are designed and fulfilled by Wonder (“Wonder Promotions”); provided, that in the event a Wonder Promotion will impact Merchant Revenue, Wonder shall give Merchant prior written notice of such Wonder Promotion.   

7.    CONFIDENTIALITY.   

7.1.     Scope of Confidential Information. “Confidential Information” means any and all information disclosed by one party (the “Discloser”) to the other party (the “Recipient”), directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or provided under circumstances reasonably indicating that the information is confidential or proprietary. Confidential Information includes: (i) information, ideas or materials of a technical or creative nature, such as research and development results, designs and specifications, computer source and object code, patent applications, and other materials and concepts relating to Wonder’s products, services, processes, technology or other Intellectual Property Rights; (ii) information, ideas or materials of a business nature, including non-public financial information; information regarding profits, costs, marketing, purchasing, sales, customers, suppliers, contract terms, employees and salaries; product development plans; business and financial plans and forecasts; marketing and sales plans and forecasts; and, in the case of Wonder, Performance Data; and (iii) the terms and conditions of this Agreement (including any Supplemental Terms). Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public through no breach of this Agreement (including any Supplemental Terms) or any other agreement by the Recipient; (b) is or was known by the Recipient at or before the time such information was received from the Discloser, as evidenced by the Recipient’s tangible (including written or electronic) records; (c) is received from a third party that is not under an obligation of confidentiality to the Discloser with respect to such information; or (d) is independently developed by the Recipient without any breach of this Agreement (including any Supplemental Terms), as evidenced by the Recipient’s contemporaneous tangible (including written or electronic) records.   

7.2.     Confidentiality Obligations. Each party agrees that during the Term and thereafter it: (i) shall hold all Confidential Information of the other party in confidence and trust for the benefit of the other party; (ii) shall not copy or use (or allow any of its affiliates, employees, contractors or agents (each, a “Representative”) to copy or use) any Confidential Information of the other party, except as is necessary to perform under this Agreement (provided such Representatives also agree to maintain the confidentiality of such Confidential Information); and (iii) shall not disclose or otherwise make available any such Confidential Information to any third party except as authorized in writing and in advance by the other party. Specifically, and without limiting the foregoing, the Recipient will exercise the same level of care to avoid inadvertent or unauthorized disclosure of Confidential Information of the Discloser that it uses for its own confidential information, but shall exercise no less than reasonable care. If the Recipient is required to disclose Confidential Information of the Discloser pursuant to the order of any court, governmental agency or arbitrator, or pursuant to applicable law, the Recipient shall provide the Discloser with prompt written notice of such requirement (to the extent legally permissible) in order to allow the Discloser the opportunity to seek a protective order or other appropriate relief. Merchant will cause its Representatives to comply with this Section 7 and will be solely responsible for any breach of this Section 7 by any of its Representatives. Upon the termination of this Agreement and as requested by the Discloser, each Recipient will return to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form.   

8.    DATA PRIVACY AND SECURITY.   

8.1.     Personal Data.  In connection with Wonder’s enabling Customers to purchase Menu Items from Merchant for delivery to such Customers by means of the Wonder Platform, Wonder may access, collect, store, retain, transfer, distribute, use, disclose, or otherwise process Personal Data of such Customers (“Wonder Customer Data”). As between Wonder and Merchant, Wonder will own all right, title and interest in and to all Wonder Customer Data, and shall be under no obligation to share with or disclose to Merchant any Wonder Customer Data. Wonder Customer Data constitutes the Confidential Information of Wonder. Merchant may not, during and after the Term, sell, rent, license, share, transfer, distribute or otherwise disclose any Wonder Customer Data obtained by Merchant pursuant to this Agreement to any third party, including any competitor of Wonder or its affiliates. Merchant will maintain the accuracy and integrity of all Wonder Customer Data in Merchant’s possession, custody or control, and will keep the same secure from unauthorized access by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to any Wonder Customer Data, Merchant will immediately notify Wonder via email, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Wonder. As used herein, “Personal Data” means any information obtained in connection with this Agreement: (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, or other unique identifiers; and (iii) any information that may otherwise be considered “personal data” or “personal information” under applicable law.   

8.2.     Credentials. Merchant is responsible for keeping Merchant’s account access information secure, including any password, login credentials or key information (collectively, “Credentials”). Merchant represents and warrants that it will not share such information with any third party. Merchant will be responsible for damages resulting from sharing Merchant’s Credentials with unauthorized third parties or permitting unauthorized access to Merchant’s account. Credentials are the Confidential Information of Wonder. Merchant may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the Wonder Platform, Wonder Services or, if applicable, the Merchant Portal; damage, destroy or impede the services provided through any of the foregoing; bypass or breach any security protection on any of the foregoing; or transmit injurious code through any of the foregoing.   

9.    PERFORMANCE DATA. Wonder may (in its sole discretion) provide Merchant with information about its sales on the Wonder Platform, such as aggregated information regarding the number of Menu Items picked up by Customers or Delivery Persons and sold by Merchant to Customers and such other performance or analytic data as Wonder may provide to its merchants from time to time (collectively, “Performance Data”). Merchant agrees to access, collect, store, retain, use, or otherwise process such Performance Data solely for its internal business purposes. For clarity, Merchant may not, during and after the Term, sell, rent, license, share, transfer, distribute or otherwise disclose any Performance Data to any third party, including any competitor of Wonder or its affiliates.   

10. FEEDBACK. Merchant may, but is not obligated to, provide Wonder or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to Wonder’s and/or its affiliate’s products and services (collectively, “Feedback”). By sending us any Feedback, you represent and warrant that you have the right to disclose the Feedback and the Feedback does not contain the confidential or proprietary information of any third party or violate any third party rights. By providing us with Feedback, you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works from, publish, distribute and sublicense the Feedback.    

11.  CUSTOMER REVIEWS AND RATINGS. Merchant acknowledges and agrees that, after receiving Merchant’s Menu Items, a Customer may be prompted by the Wonder App to provide a rating of such Merchant’s Menu Items and, at such Customer’s option, to provide reviews, ratings, comments or feedback related to the Customer’s experience with Merchant and the relevant Merchant’s Menu Items on the Wonder App (collectively, “Customer Reviews”). Wonder and its affiliates reserve the right to use, share, and display Customer Reviews in any manner in connection with Wonder and its affiliates business without attribution to or approval of Merchant. Merchant acknowledges that Wonder and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Reviews, provided that Wonder and its affiliates reserve the right to edit or remove Customer Reviews in the event that such Customer Reviews include obscenities or other objectionable content, include Personal Data, violate any privacy or other applicable laws, or Wonder’s or its affiliates’ content policies.    

12. TERM; TERMINATION AND SUSPENSION; CHANGES.   

12.1.     Term. This Agreement is effective as of the date of your acceptance (the “Effective Date”) and shall remain in full force and effect until such time as Merchant’s participation in the Wonder Platform as a Merchant Partner is terminated in accordance with the terms hereof or the earlier termination or suspension of the Wonder Platform (the “Term”).   

12.2.     Termination and Suspension.   

12.2.1.   Merchant may terminate this Agreement (and, accordingly, Merchant’s participation in the Wonder Platform as a Merchant Partner) for any reason at any time upon seven days’ prior written notice to Wonder; provided that Merchant may terminate this Agreement immediately upon written notice to Wonder (i) in the event Wonder materially breaches this Agreement and fails to cure such breach within 30 days’ written notice thereof; or (ii) given in accordance with Section 12.5 or Section 23.   

12.2.2.    Wonder may terminate or suspend this Agreement, in whole or in part, for any reason at any time upon seven days’ prior written notice to Merchant; provided, that Wonder may terminate or suspend this Agreement, in whole or in part, immediately upon written notice to Merchant (i) in the event Merchant materially breaches this Agreement and fails to cure such breach within seven days’ written notice thereof, or (ii) in the event Merchant engages in any conduct which, in Wonder’s reasonable judgment, would bring Wonder or its affiliates into public disrepute, contempt or scandal or could expose Wonder or its affiliates to liability to a third party, including matters related to the violation or alleged violation of any applicable retail food or other health or safety code.    

12.2.3.  Merchant shall continually operate its brick and mortar restaurant(s) in accordance with its regular business hours throughout the Term.  In the event that Merchant ceases operation of any location for longer than 48 hours outside of the ordinary course of business without providing prior notice to Wonder, Wonder may immediately terminate this Agreement, at which time all Order Equipment must be returned to Wonder within 48 hours.  Until all Order Equipment is returned to Wonder, any and all amounts due to Merchant under this Agreement may be withheld by Wonder.    

12.3.     Effect of Termination. All payment obligations, any other provision which, by its nature or express terms, is intended to survive the termination or suspension of Merchant’s account shall survive the termination or suspension of Merchant’s account (including all representations and warranties, indemnification obligations and limitations of liability hereunder). Upon termination of this Agreement for any reason: (i) Merchant shall promptly return any Order Equipment provided to Merchant by Wonder in accordance with Wonder’s return instructions; (ii) at Wonder’s election, each party shall promptly return or destroy all Confidential Information of the other party in such party’s possession or control (including, in the case of Merchant, any Wonder Customer Data and Credentials); and (iii) any license granted pursuant to this Agreement to the other party’s intellectual property or trademarks terminates concurrent with the effective date of termination.   

12.4.     Changes to the Services. We reserve the right to improve or otherwise change the features and functionality of, or our policies relating to, the Wonder Platform, the Merchant Portal or other Wonder Services (collectively, the “Services”) at any time and in our sole discretion, without notice and without liability to you. This includes adding, modifying or removing Menu Items, Merchant Partners, Service Areas or other specific features and functionality and/or updating how any of the Services are provided. This Agreement will apply to the updated version of the Services. Additionally, notwithstanding anything to the contrary herein, we reserve the right to suspend or discontinue any of the Services altogether in our sole discretion, at any time, and without liability to you.   

12.5.     Changes to this Agreement. Wonder reserves the right to modify this Agreement at any time and in our sole discretion, including to the “DISPUTE RESOLUTION AND ARBITRATION” provisions set forth in Section 17. Wonder will notify you of any changes to this Agreement by: (i) posting an updated version of this Agreement to the Services; (ii) emailing a copy of the updated version of this Agreement to you at the email address associated with your Wonder account; or (iii) sending you a copy of the updated version through your Wonder account, or otherwise notifying you when you are logged into your Wonder account. You should regularly review the Services, your Wonder account and the email associated with your Wonder account for any such notices or messages, as your continued use of the Services after any such changes were so posted or sent to you (as applicable) constitutes your agreement to such changes. If you do not agree to such changes, then you may terminate this Agreement immediately upon written notice to Wonder given within 15 days of your receipt of notice of the applicable changes.   

13. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.   

13.1.     Representations and Warranties. Each party hereby represents and warrants that: (i) it has the full power and authority to enter into this Agreement and perform its obligations hereunder without breaching any obligation to any third party; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and, in the case of Merchant, all applicable food safety and plastic/packaging laws); (iv) the Brand Features, or any other content or assets provided by one party to the other pursuant to this Agreement (including, in the case of Merchant, Merchant Materials) shall not infringe, misappropriate or otherwise violate the Intellectual Property Rights, rights of publicity, or other proprietary rights of any third party. Merchant further represents and warrants that: (i) all Brand Features and Merchant Materials submitted by Merchant to Wonder are owned by Merchant or, as necessary, Merchant has obtained all rights for Wonder to use such Brand Features and Merchant Materials as described in this Agreement, (ii) if applicable, all Merchant Delivery Persons are qualified in accordance with industry standards to perform deliveries and other obligations under this Agreement, and (iii) all information, data and other documentation provided hereunder with respect to Merchant’s Menu Items and Merchant Locations (including Menu Item descriptions, allergen information (if any) and dietary and/or nutritional information (if any)) shall, at all times during the Term, be complete and accurate and not contain any misrepresentations or fraudulent claims.   

13.2.     DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WONDER DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES OR, IF AND AS APPLICABLE, ORDER EQUIPMENT, INCLUDING ANY WARRANTIES (i) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (ii) OF INFORMATIONAL CONTENT OR ACCURACY, (iii) OF NON-INFRINGEMENT, (iv) OF PERFORMANCE, (v) OF TITLE, (vi) THAT THE WONDER PLATFORM WILL OPERATE IN AN ERROR FREE, TIMELY, SECURE, OR UNINTERRUPTED MANNER, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (vii) THAT ANY DEFECTS OR ERRORS IN THE WONDER PLATFORM WILL BE CORRECTED, OR (viii) THAT THE WONDER PLATFORM IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM.   

14. INDEMNIFICATION.   

14.1.     Wonder’s Indemnity. Wonder shall indemnify, defend and hold harmless Merchant, its affiliates, and its and their respective directors, officers, employees, agents, successors, licensees, suppliers, and assigns and other representatives from and against any and all losses, liabilities, damages, penalties, judgments and settlements, as well as all costs and expenses (including, reasonable outside attorneys’ fees and costs) (collectively, “Damages”) incurred in connection with any and all third-party claims, demands, actions, suits, investigations, arbitrations and other proceedings (collectively, “Claims”) arising out of or in connection with: (i) Wonder’s actual or alleged breach of its representations, warranties and/or covenants herein; (ii) the gross negligence, willful misconduct or fraud in performance of this Agreement by Wonder or any of its employees, third-party contractors or agents; and/or (iii) any bodily injury (including death) to Customers to the extent caused by the acts or omissions of Wonder or its employees, third-party contractors or agents.   

14.2.     Merchant’s Indemnity. Merchant shall indemnify, defend (if required by Wonder and with counsel reasonably acceptable to Wonder) and hold harmless Wonder, its affiliates, and its and their respective directors, officers, employees, agents, successors, licensees, suppliers, and assigns and other representatives from and against any and all Damages incurred in connection with any and all Claims arising out of or in connection with: (i) Merchant’s actual or alleged breach of its representations, warranties and/or covenants herein; (ii) the gross negligence, willful misconduct or fraud in performance of this Agreement by Merchant or any of its employees, third-party contractors or agents (including Merchant Delivery Persons, if applicable); (iii) any bodily injury (including death) to Customers to the extent caused by Merchant’s Menu Items and/or the acts or omissions of Merchant or its employees, third-party contractors or agents (including Merchant Delivery Persons, if applicable); (iv) any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Merchant’s Menu Items; and/or (v) any allegation that Merchant’s Brand Features, Merchant Materials or any other content or assets provided by Merchant pursuant to this Agreement (and the exercise of the rights granted herein with respect thereto) infringe, misappropriate or otherwise violate the Intellectual Property Rights, rights of publicity, or other proprietary rights of any third party.   

14.3.     Indemnification Procedure. Any party seeking indemnification hereunder (an “Indemnitee”) must give the party from whom indemnification is sought (the “Indemnitor”): (i) prompt written notice of the Claim (provided that its failure to do so will not relieve the Indemnitor of its obligations under this Section 14, except to the extent it is materially prejudiced thereby); (ii) reasonable cooperation, at the Indemnitor’s request and expense, in the defense of such Claim; and (iii) the right to assume sole control over or participate in the defense and settlement of any such Claim; provided, however, that the Indemnitor shall not, without the prior written approval of the Indemnitee (which shall not be unreasonably withheld or delayed), settle any Claim unless such settlement (a) is solely for monetary damages (for which the Indemnitor shall be responsible), (b) does not impose injunctive or other equitable relief on any of the Indemnitees, and (c) includes an unconditional release of each of the Indemnitees from all liability relating to the compromised or settled Claim.   

15. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITY (i) ARISING FROM OR RELATED TO A BREACH BY A PARTY OF ANY (a) OF ITS OBLIGATIONS UNDER SECTION 7 OR SECTION 8, OR (b) LICENSES GRANTED TO SUCH PARTY BY THE OTHER PARTY HEREUNDER, OR (ii) CAUSED BY A PARTY’S FRAUD OR WILLFUL MISCONDUCT, AND WITHOUT LIMITING EITHER PARTY’S OBLIGATIONS UNDER SECTION 14, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL: (1) EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, REGULATION, COMMON LAW PRECEDENT OR OTHERWISE, EVEN IF WONDER OR MERCHANT HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES; OR (2) EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER FOR ALL CLAIMS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT EXCEED THE AMOUNTS PAID AND PAYABLE TO MERCHANT BY WONDER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO THE LIABILITY.   

16. INSURANCE. Merchant will comply with the insurance requirements set forth on Exhibit A.   

17. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.   

17.1.     Scope of Agreement to Arbitrate. This Section 17 is intended to be interpreted broadly and governs any and all disputes between the parties, including claims arising out of or relating to any aspect of the relationship between the parties, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including claims related to advertising, and any content available on or through the Wonder Platform); and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below. By accepting this Agreement, you agree to resolve any and all disputes with Wonder as set forth below.   

17.2.     Initial Dispute Resolution. Most disputes can be resolved without resort to litigation. You can reach Wonder at [email protected]. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Wonder, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.   

17.3.     Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty 30 days from the time informal dispute resolution is initiated under Section 17.2, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of the Wonder Platform shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement or the Privacy Policy, including any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To start an arbitration, you must do the following: (i) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (ii) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 620 Eighth Ave., NY Times Building, 34th Floor, New York, NY 10018 USA; and (iii) send one copy of the Demand for Arbitration to Wonder Group, Inc., 4 World Trade Center, 150 Greenwich Street, 57th Floor, New York, NY 10006, Attention: Legal Department.   

The arbitration proceedings and arbitration award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors and senior management.   

Each party shall pay its own proportionate share of arbitrator fees and expenses plus fees and expenses of JAMS. The arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in their discretion.   

The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.   

You and Wonder agree that any arbitration will take place in the state in which you reside. You and Wonder further agree to submit to the personal jurisdiction of any federal or state court in New York County, New York in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.   

17.4.     Class Action Waiver. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND WONDER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this Section 17.4 is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above (but not the remainder of this Agreement) shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.   

17.5.     Exception for Litigation of Intellectual Property Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its Intellectual Property Rights.   

18. GOVERNING LAW. This Agreement and the relationship between you and Wonder shall be governed in all respects by the laws of the State of New York, without regard to its conflict of law provisions. Any claim or dispute either party may have against the other that is not subject to arbitration must be resolved by a court located in New York County, New York. Each party agrees to submit to the personal jurisdiction of the federal and state courts located within New York County, New York for the purpose of litigating all such claims or disputes that are not subject to arbitration, and waives any right it may have to assert the doctrine of forum non conveniens or to object to venue to the extent that any proceeding is conducted in accordance herewith.   

19. FRANCHISEES. Franchisees operating a branded restaurant or store concept licensed by Merchant may participate in the Wonder Platform and Wonder Services pursuant to the terms and conditions of this Agreement; provided that the individual franchisee at all times remains in compliance with its franchise agreement. Unless the parties mutually agree otherwise in writing, all Merchant-owned branded restaurant(s) and store concept(s) shall be included and subject to the terms hereunder. Merchant represents and warrants that, to the extent Merchant has franchisees who participate in any activities under this Agreement, Merchant will ensure that such franchisees will comply with, and be subject to, the applicable provisions of this Agreement when participating in such activities.   

20. NOTICES. Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (i) upon actual delivery, if delivery is by hand; (ii) one day after being sent by overnight courier, charges prepaid; or (iii) by electronic mail to the designated recipient. Notices to Wonder should be provided via hand delivery or overnight courier to Wonder Group, Inc., 4 World Trade Center, 150 Greenwich Street, New York, NY 10006, Attention: Legal Department, and via electronic mail to [email protected]. Notices to Merchant should be provided to the address provided by Merchant as part of Merchant Documentation.   

21. COMMUNICATIONS. Merchant agrees to accept and receive communications from Wonder or Wonder Delivery Persons, including via email, text message, calls, and push notifications to the cellular telephone number Merchant provides to Wonder. Merchant acknowledges that Merchant may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Wonder, its affiliates and/or Wonder Delivery Persons. Merchant may opt out of such communications in Merchant’s account settings or by replying “STOP” from the mobile device receiving such messages.   

22. PUBLICITY. Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party. Subject to the foregoing, the parties agree to collaborate in good faith with respect to the issuance of a press release announcing the availability of Merchant’s Menu Items through the Wonder Platform, the content and timing of such press release to be mutually determined by the parties.   

23. SUPPLEMENTAL TERMS. In some instances, additional guidelines, rules, or terms that are posted on the Services or made available to you apply to your use of the Services, such as Merchant Promotion terms, use policies or terms related to certain features and functionalities (collectively, “Supplemental Terms”). Supplemental Terms are in addition to, and will be deemed a part of, your agreement with Wonder. Supplemental Terms will prevail over this Agreement in the event of a conflict. Wonder will provide notice of any changes to any Supplemental Terms by: (i) posting an updated version of the Supplemental Terms to the Services; (ii) emailing a copy of the updated version of this Agreement to you at the email address associated with your Wonder account; or (iii) sending you a copy through your Wonder account, or otherwise notifying you when you are logged into your Wonder account. Your continued use of the applicable Services after any such changes were so posted or sent to you (as applicable) constitutes your agreement to such changes. If you do not agree to such changes, then you may terminate this Agreement immediately on written to Wonder given any time within 15 days of your receipt of notice of the applicable changes.   

24. GENERAL PROVISIONS. This Agreement (including all Supplemental Terms) constitutes the full and complete agreement between the parties relating to the subject matter hereof, and supersedes all prior agreements and communications, with respect to the subject matter hereof; provided, however, that if there is any conflict between this Agreement and the Order Form, the provisions of the Order Form shall control. Merchant may not assign, transfer, delegate or subcontract this Agreement, in whole or in part, without Wonder’s prior written consent. In this Agreement, “including” means “including, without limitation,” and examples are illustrative and not the sole examples of a particular concept. The headings are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Sections are to Sections of this Agreement unless otherwise specified. Wonder may freely assign transfer, delegate or subcontract this Agreement, in whole or in part. This Agreement is binding upon, and inures to the benefit of, the employees, representatives, agents, affiliates, franchisors, franchisees, and permitted successors and assigns of each party, but shall not confer any rights or remedies upon any third party. Any purported assignment, transfer, delegation or subcontract in violation of this Section 24 will be null and void. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here. The failure of either party to enforce, at any time or for any period of time, the provisions hereof or thereof, or the failure of either party to exercise any option herein or therein, will not be construed as a waiver of such provision or option and will not affect that party’s right to enforce such provisions or exercise such option. Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war, terrorism or similar force majeure events (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship between the parties (except as otherwise expressly set forth above), and neither party will have the right to enter into contracts on behalf of, to legally bind the other party. Each party will be solely responsible for its employees and contractors used in connection with such party’s performance of its obligations under this Agreement.   

EXHIBIT A   

Merchant Minimum Insurance Requirements   

A.    “Wonder” as used herein shall be deemed to include: Wonder Group, Inc. and its directors, officers, members, principals, partners, shareholders, employees, subsidiaries, successors, assignees, affiliates, licensees, servants and agents.   

 B. Merchant shall procure and/or maintain, the following insurance coverage: 1. commercial general liability insurance shall cover all operations and/or work of Merchant for bodily injury and property damage liability with limits of not less than $1,000,000 each occurrence, schedule Wonder as an additional insured on ISO CG 20 26 07 04 and CG 20 15 07 04, additional insured status shall be on a primary and non-contributory basis; 2. commercial automobile liability insurance shall cover all owned, leased, non-owned and hired vehicles for bodily injury and property damage liability with limits of not less than $1,000,000 per accident including coverage for independent contractors and temporary workers with no “delivery services”, “transportation network platform” or “delivery network platform” exclusions, restrictions or endorsements. (NOTE: If Merchant exclusively uses Wonder Delivery Persons to fulfill Orders, then commercial automobile liability insurance is not required); 3. workers’ compensation and employers’ liability insurance in accordance with the applicable state statutes and laws; and 4. cyber and privacy insurance shall cover all operations, services and/or work with limits of not less than $1,000,000 each claim and schedule Wonder as an additional insured on a primary and noncontributory basis. 

C.    Prior to the start of any operations and/or work, Merchant shall furnish Wonder with ACORD certificate(s) of insurance executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements set forth herein along with a copy of the insurance policy endorsements providing: additional insured, additional insured is on a primary and noncontributory basis.   

ACORD certificate(s) with required attachments should be emailed to Certificate Holder listed below: [email protected]   

D.    Merchant shall cooperate with Wonder’s insurers.  Merchant shall notify Wonder in writing as soon as practicable after they receive notice of any loss, damage, or injury or are aware of an incident which might give rise to a claim in the future.   

E.    The minimum limits, terms and conditions set forth herein will not be construed as a limitation of Wonder rights under any insurance policy and no insurance policy maintained by Merchant shall be endorsed to include any such limitation.   

F.     The insurance coverage set forth in this Insurance Exhibit, will in no way limit Merchant liability arising out of any operations and/or work (including liability under indemnification provisions) or under any other agreements or by-law.  Merchant will be responsible for determining appropriate inclusions, coverage and limits which may be in excess of the minimum insurance requirements set forth herein.